' ABDUS SATTAR ASGHAR, J.--- This Criminal ' Appeal under section 417(2-A), Cr.P.C. Is lodged against the judgment dated 13-12-2011 passed by the learned Additional Sessions Judge Ahmedpur East whereby Muhammad Ajmal and others respondents Nos.1 to 6/accused in case F.I.R.
No.11/2005, dated 16-1-2005, under sections 302/148/149 P.P.C., Police Station Sadar Ahmedpur East have been acquitted of the charge.
2. Prosecution case as set forth by Abdur Razzaq appellant/complainant of the F.I.R. (Exh.PB/1) lodged on 16-1-2005 at 10-30 a.m. Through an application (Exh.PB) is that in between the night 4/5- 12-2004 at 11-00 p.m. He along his brother Mushtaq Ahmed (deceased) and P.Ws. Rasheed Ahmed son of Rahim Bakhsh and Muhammad Afzal son of Malik Khando were going to Mouza Bakhoo Arbi to ask about the health of ailing wife of Rahim Bakhsh mother of Zaibo Mai wife of Mushtaq (deceased); that Zaibo Mai had already gone to the house of her father about two days back to attend her ailing mother; that in the way one Ghulam Farid a friend of Mushtaq Ahmed deceased met them and had some conversation with Mushtaq (deceased) in privacy at some distance, thereafter Mushtaq told them that he along with Ghulam Farid was going to Basti Mohlan at a distance of about one Acre; that both i.e. Ghulam Farid and Mushtaq had covered a distance of 5/6 karams when they heard hue and cry of Mushtaq Ahmed whereupon he (complainant) and the above mentioned P.Ws. Reached the spot in running condition and saw that accused Muhammad Ajmal armed with chhurra, Abdul Lateef armed with iron-rod, Muhammad Bakhsh armed with chhurra, Ghulam Rasool armed with sota, Shabbir Ahmad alias Shabbir armed with dang and Allah Wasaya empty handed were causing injuries to Mushtaq Ahmed with their respective weapons; that on the hue and cry a number of people attracted to the spot; that his brother Mushtaq was in seriously injured condition; that the accused decamped from the scene of occurrence; that Mushtaq has been conveyed to the Civil Hospital Ahmedpur East by Muhammad Afzal P.W. On motorcycle at about 11-45 a.m. Who later on succumbed to the injuries in the hospital; that the above named accused in furtherance of their common intention have injured his brother to cause a premeditated murder. Motive is that Allah Wasaya had a suspicion of illicit relations of his daughter Sugra Mai with Mushtaq; that the accused concocting a false and fictitious story have got registered a case against Mushtaq Ahmed (deceased) at the police station.
3. Record transpires that after police investigation report under section 173, Cr.P.C. Was submitted against the respondents/accused who were formally charge-sheeted under sections 302/148/149 P.P.C. By the learned trial Court to which they pleaded not guilty and claimed to be tried.
Prosecution produced as many as ten witnesses to prove the charge. Abdur Razaq complainant eye-witness (P.W.1), Muhammad Afzal (P.W.2) the other eyewitness, Manzoor Ahmed S.-I. (P.W.8) and Dr.Ejaz ul Haq (P.W.9) are the material witnesses. Rest of the witnesses is of formal nature.
4. After concluding the prosecution evidence learned trial Court recorded the statements of the accused under section 342, Cr.P.C. Whereby they discarded each and every piece of prosecution evidence. All the accused while answering the question As to why the present case was registered and why P.Ws. Deposed against you, deposed as under:-- "The P.Ws. Are accused of F.I.R. No.434, registered at Police Station Sadar Ahmadpur East under section 458, P.P.C. On 5-12-2004. The complainant is Allah Wasaya and as per facts of the case, Allah Wasaya made the statement that his daughter Mst: Sughran along with her children lives in her house alone. Her husband works on brick kiln. On the day of occurrence, at about 10-30 p.m.
Mst. Sughran went out from her room for call of nature, where Mushtaq Ahmed son of Ghulam Fareed, Caste Arbi RIO Bakho Arbi armed with pistol .30 bore, Rahim Bakhsh son of Allah Ditta armed with soti and Rasheed Ahmed son of Raheem Bakhsh Caste Arbi RIO Bakho Arbi armed with soti along with one unknown person armed with soti were standing there. On the hue and cry of Mst. Sughran, Allah Wasaya complainant, Muhanzamd Ajmal son of Malik Ghulam, Gindanz Rasool son of Malik Budha, Allah Bakhsh son of Muhammad Nawaz' came there and caught hold of Mushtaq Ahmad with pistol .30 bore. Other accused persons fled away from there. The above- mentioned persons namely Mushtaq Ahmed, Raheem Bakhsh, Rasheed Ahmad and one unknown person, while armed with pistol and soties, _entered the house of Mst. Sughran daughter, of the complainant at night time, committed the offence of house breaking by night after the preparation for causing hurt and assault. Mushtaq Ahmad with pistol .30 bore and 5 live bullets Was produced before police. On the statement .Of Allah Wasaya complainant, case F.1 . R.
No.434/2004, under section 458. . P.P.C. Was registered and another case F.I.R. No.435/2004 under sections 7/21/91 STAA was registered against Mushtaq Ahmad. Injury statement of Mushtaq Ahmed was prepared and the injured was sent to hospital. Ahmadpur East for medico legal examination through Ata-ul-Mohsin 385/C. After. The post mortem report, the dead body was identified by Abdul Razaq and Muhammad Afzal. At that time Afuhamaind Afzal and Abdul Razaq did not make any oral or written request for proceeding against any person. The complainant thereafter after 42 days..Concocted a false story. That deceased namely Mushtaq Ahmad was a criminal and involved in case F.I.R. No.344/2002 under sections 457/ 380/411, P.P.C., Police Station Sadar -Ahmadpur East, F.I.R. No,108/2003 under sections 395/ 412, P.P.C., Police. Station Sadar Ahmadpur East, F. I .R.No.129/2003 under sections 7/21/91 STAA, Police Station Sadar Ahmadpur East, F.I.R. No.167/2003 under sections 395/ 412, P.P.C., Police Station Sadar Ahmedpur East, F.I.R.
No.231/2003 under sections 457/ 381-A, P.P.C., Police Station Uch Sharif, F.I.R. No.249/2001 under section 7/21/91 STAA, Police Station Sadar Ahmadpur East, F.I.R. No.372/2003 under section 436, P. P.
C., Police Station Sadar Ahmadpur East, F.I.R. No.87/2003 under sections 398/ 401, P.P.C., Police Station Drawar and F.I.R. No.90/2003 under sections 7/21/91 STAA, Police Station Drawar. P. Ws. Are closely related to the complainant and have deposed against me due to their relationship with the complainant. I am innocent in this case and have been involved in this due to some ulterior motive."
' None of the accused appeared in the witness box in terms of section 340(2) Cr.P.C., however, certified copies of the various F.I.Rs. (Exh.DC to Exh.DK) lodged against Mushtaq Ahmed (deceased) were produced as evidence in defence.
5. It is argued by the learned counsel for the appellant that he has proved the charge by producing confidence-inspiring ocular and documentary account; that learned trial Court has acquitted the respondents given benefit of doubt without appreciating the reliable ocular account and medical evidence merely on the basis of surmises and conjectures through impugned order, which is perverse, arbitrary, illegal and liable to set aside.
6. We have given patient hearing to learned counsel for the appellant and gone through the record.
7. As evident on the record this is a case of two version. One advanced by the complainant and the other by the defence side. Time of occurrence is almost the same, however, place of occurrence and set of accused and P. Ws in both the versions are different.
8. A careful comparative appraisal of the testimonies of Abdur Razaq complainant (P.W.1) and Muhammad Afzal (P. W.2), reveal following material inconsistencies, discrepancies and deficiencies in the prosecution version:--
(i) Both the said eye-witnesses are at variance regarding the names of the accused. Abdur Razaq complainant (P.W.1) has not mentioned the name of Abdul Latif and Nazir Ahmed as accused rather he implicated another person namely Muhammad Rafique armed with an iron-rod. The complainant Abdur Razaq (P.W.1) is real brother and Muhammad Afzal (P.W,2) is real cousin (khala-zad) of Mushtaq Ahmed deceased. It is noteworthy that during police investigation Muhammad Bakhsh and Ghulam Rasool 'accused/respondents were found innocent.
(ii) Abdur Razaq complainant (P.W.1) during cross-examination stated that he had left the house at 8-00 p.m. To see the ailing wife of Rahimn Bakhsh, however, the occurrence allegedly took place at 11-00 p.m. When they were in way while proceeding to the house of Rahim Bakhsh. He has not explained that where P. Ws. Consumed intervening time of three hours.
(iii) Admittedly it was a night time occurrence. No source of light is alleged in the prosecution version. ' During cross-examination Abdur Razaq complainant (P.W.1) stated that when they reached the place of occurrence the accused decamped towards the street of Basti Mohlhn. There is nothing on the record to show that they had chased the accused. In the given circumstances identification of the accused as alleged by the prosecution does-not appeal to the sense,
(iv) Abdur Razaq complainant (P.W.1) in the F.I.R. Has categorically alleged that Rashid Ahmed son of Rahim Bakhsh was also accompanying them who had seen the occurrence as an eye-witness.
He is brother-in-law of the deceased but not produced in the witness box. Withholding of an important witness without assigning any sufficient reason also leads to an inference against the veracity of the prosecution version.
9. Owing to the above material inconsistencies, discrepancies and deficiencies we have no hesitation to conclude that both the eye-witnesses Abdur Razaq complainant (P.W.1) and Muhammad Afzal (P.W.2) have not been able to furnish any probable or plausible reason of their presence at the alleged time and place of occurrence, therefore, testimonies of both the eye- witnesses lacking intrinsic value and inherent worth are neither confidence inspiring nor reliable.
10. Allegedly occurrence took place in the night between 4/5-12-2004 whereas F.I.R. Is lodged on 16- 1-2005 after delay of about one month and twelve days. No plausible reason is given for inordinate delay in lodging of F.I.R. It is pertinent to mention that Allah Wasaya accused/ respondent No.3 is complainant whereas Muhammad Ajmal and Ghulam Rasool accused are eye-witnesses of the earlier F.I.R. No.434/2004 under section 458, P.P.C., Police Station Sadar Ahmedpur East lodged against Mushtaq Ahmed deceased, Rasheed Ahmed son of Rahim Bakhsh and Rahim Bakhsh son of Allah Dita. Inordinate delay in lodging of F.I.R. To implicate the complainant and P.Ws. Of the earlier F.I.R. No.434/2004 under section 458, P.P.C., Police Station Sadar Ahmedpur East, therefore, manifest that chances of concoction of prosecution version for false implication with deliberation and consultation cannot be ruled out. It also creates a strong doubt and dent in the prosecution evidence rather manifests that the complainant has lodged this case with ulterior motive and as counter blast to the earlier F.I.R. No.434/2004 under section 458, P.P.C., police station Sadar Ahmedpur East.
11. Manzoor Ahmed S.-I. (P.W.8) deposed that on 5-12-2004 pursuant to wireless message that a thief has been apprehended in Basti Mohlan he reached the spot where Allah Wasaya complainant of F.I.R. No.434/2004 opened the door of residential room where Mushtaq Ahmed in injured condition (later on died) was lying on floor, whose arms and legs were tied and a pistol .30 bore along with five bullets were recovered from Mushtaq Ahmed; that he recorded the statement of Allah Wasaya on the basis whereof F.I.R. No.434/2004 under section 458 P.P.C., Police Station Sadar Ahmedpur East was recorded; that he prepared the injury statement of Mushtaq Ahmed and sent to THQ Hospital Ahmedpur East for medical examination in the escort of Ata-ul-Mohsin 385/HC where Doctor referred him in injured condition to Bahawal-Victoria Hospital who succumbed to the injuries in the way. He also prepared inquest report of Mushtaq Ahmed deceased and handed over the dead body to the Doctor for his postmortem examination.
12. It is noteworthy that the complainant of the instant case had never questioned the investigation of the earlier. F.I.R. No.434/2004 before any higher Authority in the Police hierarchy to get declared deceased Mushtaq Ahmed innocent from the allegations levelled against him. Prosecution has also failed to substantiate the plea that Mushtaq Ahmed in injured condition was conveyed to the.
Civil Hospital Ahmedpur East by Muhammad Afzal P.W. Rather from the evidence available on the record particularly the statement of ,Manzoor Ahmed SI (P.W.8) militates against the assertion of the complainant of his being present at the place of occurrence become highly doubtful as Mushtaq Ahmed injured (later on died) was conveyed to hospital by Ata-ul-Mohsin 385/HC which is suggestive to the non-presence of the complainant at the place of occurrence.
13. Motive as alleged by the prosecution in this case is also not established through any confidence inspiring speck of evidence as the prosecution has miserably failed to prove the illicit relations between Mushtaq Ahmed deceased and Mst.Sughran Bibi daughter of Allah Wasaya. It is also available on the record that deceased Mushtaq Ahmed was a habitual offender having criminal antecedents as revealed through the copies of the F.I.Rs. (Exh.DC to Exh.DK) registered at different Police Stations, produced by the defence side.
14. In the given circumstances prosecution version lacking intrinsic value and inherent worth being neither confidence inspiring nor safely reliable if put in juxtaposition the defence version seems more plausible.
15. It is cardinal principle of criminal law that prosecution remains under heavy burden to bring the guilt home to the accused beyond any shadow of doubt whereas in the instant case prosecution has failed to prove the charge against the accused beyond any reasonable doubt. Therefore, we have no hesitation to conclude that learned trial Court has rightly granted the acquittal in favour of the accused given benefit of doubt.
16. It has been variously held by the Hon'ble. Apex Court that double presumption of innocence is attached to the order of acquittal of the accused passed by the Court of competent jurisdiction.
This Court has never desired to interfere in the order of acquittal unless it is proved arbitrary, capricious, fanciful and against the record. Reliance is made upon Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53).
17. In the instant case we do not find any factual or legal infirmity in the impugned order of acquittal passed by learned trial Court. It also does not suffer from mis misappreciation of evidence produced by the complainant/appellant on the record. It is neither arbitrary nor perverse.
Therefore it does not call for any interference by this Court. This appeal having no merit is dismissed in limine.